c33:No. 192, Docket 78-6074

MEDINA, Circuit Judge
(concurring in result):
I concur fully with Judge Mansfield’s reasoned analysis by which he finds that the defendants have waived any objections to the Government’s intervention and that Judge Conner’s action on the Government’s informal request amounted to a de facto grant of permissive intervention under Rule 24(b).
However, I do not agree with the “balancing” approach which forms an integral part of Judge Mansfield’s discussion of the merits of this important appeal. The protective order at the heart of this case represents a formal agreement between all parties to the civil case which was approved- by the District Judge then presiding. The essence of this order, as it is relevant to this appeal, is that the depositions taken of party and non-party witnesses were for use only in the civil litigation. I believe that such an agreement, if valid at the time made, should be honored without doing any balancing as to the benefits to be derived from disregarding it, and I have no doubt that there was ample basis for the approval of the order by Judge Bauman and Judge Conner. I would take a different view if the order had been improperly or “improvidently” granted. For these reasons I concur in the result reached by Judge Mansfield.
The protective order states in part that the depositions and transcripts “produced by the defendants” were to be used solely for “the preparation and conduct of the litigation of this action.” Judge Conner, in his orders filed on January 5, 1978 and March 23, 1978, interpreted this agreement as applying equally to all of the depositions taken in the civil action. The Government apparently concurs in this interpretation of the protective order. Before both Judge Conner and this Court the Government has argued that the protective order must be modified or vacated before it properly could gain access to the depositions. The Government has never argued that the depositions of non-party witnesses, including Harold V. Hendrix who is willing to turn over his deposition, are outside the scope of the protective order. Since the parties, the lower court and the Government concur in this interpretation of the protective order, I see no reason for us to take a different position.
A plaintiff in a civil litigation is bound by the terms of an agreement he has made to restrict the access of non-parties, including the Government, to the products of discovery. This was the essence of Judge Frankel’s decision in GAF Corp. v. Eastman Kodak Co., 415 F.Supp. 129 (S.D.N.Y.1976), with which I fully concur.
Judge Frankel stressed the fact that the parties had reached an agreement for their mutual advantage in the civil case, and that the parties had taken their respective positions throughout the litigation relying on the assumption that strangers would not have access to the discovery. He further stated:
It is also unnecessary, and much too late, to wonder what different views the parties might have taken of discovery questions along the way had they contemplated delivery of their papers to public officials. * * * The supervening idea of disclosure to the Government must be judged (and burdened) by the understanding that this was never a proposed or expressly anticipated step when the papers were turned over to GAF in the first place. [415 F.Supp. at 131-132.]
In the instant appeal the protective order “expressly anticipated” the arrival of Government investigators on the scene and sought to prevent their access to the products of discovery.
The Government has broad investigative authority, including the power to subpoena persons and documents before the Grand Jury. I am not inclined to increase these powers by a balancing process or otherwise, and I concur in the position that the Government is “an adversary litigant, confined in its powers.” 415 F.Supp. at 133. Further, I am convinced that the Government’s purpose is not merely to obtain the answers as given by the various witnesses, but to take advantage of the work product of the lawyers who have asked innumerable questions during the course of taking the numerous depositions involved in this case. In a case of this nature, involving a large number of experienced and able lawyers, there is much to be found in the questions propounded by the various lawyers. These questions are based on information obtained in earlier investigations and depositions, and they give hints as to further possible investigations, interpretations, and so on.
This is particularly true with reference to the deposition of Hendrix, who is now willing to hand over his deposition to the Government. Hendrix’s deposition was taken on February 24, 1977. His was the last of the depositions taken in the derivative action sought by the Government. It is very probable that many of the matters taken up in the earlier depositions are referred to in his deposition, and the fact that he has agreed to turn it over to the Government would seem to be an additional reason for not acceding to the Government’s request. If the agreement and the order are to be honored, his deposition should be withheld just as in the case of the others. So long as the protective order was appropriate in the beginning of the civil case, a contention not challenged here, it remains in full force despite one man’s willingness to turn over his deposition.
For these reasons I conclude that none of the depositions should be. turned over and vote to affirm Judge Conner’s order in all respects.
. The protective order stated in relevant part:
It is hereby stipulated and agreed by the attorneys for the plaintiff, for the individual defendants served in this action, and for the defendant International Telephone and Telegraph Corporation (“ITT”), representing their respective clients, as follows:
1. The parties, their counsel, their agents, employees or representatives, will not utilize any documents, books, records, writings, depositions and transcripts produced by the defendants in the course of discovery in this action for any purpose other than the preparation and conduct of the litigation of this action.
2. Any documents, books, records, or other materials furnished by the defendants during the course of discovery in this case relating to the allegations of the complaint concerning ITT’s actions in or concerning Chile (Pars. 23-31) shall be delivered or made available to the parties and their counsel in this action only and shall be used by them solely for the purpose of prosecution or defense of the above-captioned action. Any summaries or notes prepared by counsel during discovery proceedings, or the subject of which is material produced during discovery, shall be furnished to the parties and their counsel in the case only.
3. The examination of witnesses on deposition shall be held with no one present except the reporter, the witness, parties and counsel for parties or the witness.
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5. In the event plaintiff, her counsel, agents or representatives, are served with or receive subpoenas or written demands for production of any of the documents affected by this order from any federal or state law enforcement or regulatory agency or authority, prior to responding thereto counsel for plaintiff will serve notice of receipt of same on counsel for defendants who shall have ten (10) days following such service to move the Court for a ruling respecting the necessity of compliance therewith.
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. By letter of February 16, 1978, counsel for plaintiff informed Judge Conner that he concurred with the Government’s position that the depositions should be turned over. He stated that in his view the purpose of the protective order had been to protect ITT from- adverse publicity while the civil action was in progress, and not to “insulate any deponent or witness from a proper law enforcement investigation. . ” This letter does not suggest that the depositions of party and non-party witnesses were to be treated differently under the protective order.
. See also Zenith Radio Corp. v. Matsushita Electric Industrial Co., 1978-1 Trade Cases (CCH) II 62,019 (E.D.Pa.1978); In re Coordinated Pre-trial Proceedings in Western Liquid Asphalt Cases, 18 F.R.Serv.2d 1251 (N.D.Calif. 1974); Data Digests, Inc. v. Standard & Poors, Corp., 57 F.R.D. 42, 44 (S.D.N.Y.1972). Compare In re Adele Halkin, Civ. No. 77-1313 (D.C. Cir. Jan. 19, 1979).

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